Senate Bill No. 140
(By Senators Chafin and Dempsey)
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[Introduced January 12, 2006; referred to the Committee
on Banking and Insurance; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto four new sections, designated §5-3-6, §5-3-7,
§5-3-8 and §5-3-9, all relating to the Attorney General
generally; creating an Insurance Advocacy Unit in the office
of the Attorney General; providing for the appointment of an
Insurance Advocate; setting forth the authority of the
Insurance Advocate; and providing for the duties of the
Insurance Advocate.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto four new sections, designated §5-3-6, §5-3-7, §5-
3-8 and §5-3-9, all to read as follows:
ARTICLE 3. ATTORNEY GENERAL.
§5-3-6. Office of Insurance Advocate created; purpose.
The Office of Insurance Advocate is hereby established under the authority of and subject to the policies and procedures of the
Attorney General.
§5-3-7. Insurance Advocacy Unit; Insurance Advocate; appointment;
term of office; continuation in office of current
Insurance Advocate; office space, regulations and
reports.
(a) There is hereby created within the agency of the Attorney
General the Insurance Advocacy Unit. The unit shall be under the
supervision of the Insurance Advocate. The Insurance Advocate
shall serve full time and shall be appointed by the Attorney
General for a term of four years to coincide with the term of the
Attorney General. The Insurance Advocate may be discharged only
for failure to carry out the duties of office, malfeasance or
nonfeasance in office, or for any other cause which renders him or
her ineligible for the office, or incapable or unfit to discharge
the duties of the Insurance Advocate's Office or for other good and
sufficient cause: Provided, That the current Insurance Advocate
shall continue in the position until the Attorney General appoints
a new Insurance Advocate. If a vacancy occurs in the position of
Insurance Advocate, the vacancy shall be filled for the unexpired
term in the same manner as an original appointment.
(b) The Attorney General shall provide office space, equipment
and supplies for the office.
(c) The Attorney General may promulgate rules, in order to effect the purposes of this section.
(d) On or before the first day of each regular session of the
Legislature, the Insurance Advocate shall file with the Governor,
the Clerk of the Senate and the Clerk of the House of Delegates, a
report detailing the actions taken by the unit in the preceding
calendar year.
§5-3-8. Authority of Insurance Advocate; duties; retroactive
effect of authority prohibited.
In addition to the authority established under the rules
promulgated by the Attorney General the Insurance Advocate is
authorized to:
(1) Institute, intervene in, or otherwise participate in
proceedings in state and federal courts, before administrative
agencies, or before the health care authority concerning
applications or proceedings before the health care authority or the
review of any act, failure to act, or order of the health care
authority as an advocate for the public interest and the interest
of insurance consumers;
(2) At the request of one or more policyholders, or whenever
the public interest is served, to advocate for the interests of
those policyholders in proceedings arising out of any filing made
with the Insurance Commissioner by any insurance company or
relating to any complaint alleging an unfair or deceptive act or
practice in the business of insurance;(3) Institute, intervene in, or otherwise participate in
proceedings in state and federal courts, before administrative
agencies, or before the Insurance Commissioner, concerning
applications or proceedings before the commissioner or the review
of any act, failure to act, or order of the Insurance Commissioner
as an advocate for the public interest and the interest of
insurance consumers;
(4) Review and compile information, data and studies of the
reasonable and customary rate schedules of health care providers
and health insurers, for the purposes of reviewing, establishing,
investigating, or supporting any policy regarding health care
insurance rates;
(5) Exercise all the same rights and powers regarding
examination and cross-examination of witnesses, presentation of
evidence, rights of appeal and other matters as any party in
interest appearing before the Insurance Commissioner or the health
care authority;
(6) Hire consultants, experts, lawyers, actuaries, economists,
statisticians, accountants, clerks, stenographers, support staff,
assistants, and other personnel necessary to carry out the
provisions of this section, which personnel shall be paid from
special revenue funds appropriated pursuant to section eight,
subsection (b) of this article;
(7) Contract for the services of technically qualified persons in the area of insurance matters to assist in the preparation and
presentation of matters before the courts, the Insurance
Commissioner, administrative agencies, or the health care
authority, which persons shall be paid from special revenue funds
appropriated for the use of the office;
(8) Make recommendations to the Legislature concerning
legislation to assist the office in the performance of its duties;
(9) Communicate and exchange data and information with other
federal or state agencies, divisions, departments or officers, and
with other interested parties including, but not limited to, health
care providers, insurance companies, consumers or other interested
parties; and
(10) Perform other duties to effect the purposes of this
article relating to insurance.
(11) Investigate the legality of all rates, charges, rules,
and practices of all persons under the jurisdiction of the
Insurance Commission, and institute civil proceedings before any
court or administrative agency to correct any illegality on the
part of any person. In any investigation, the person acting for
the office of the Insurance Advocate shall have the power to ask
the Insurance Commissioner to issue subpoenas, compel the
attendance and testimony of witnesses, and the production of
papers, books and documents;
(12) Make recommendations to the Legislature regarding insurance regulation;
(13) Make recommendations to the Insurance Commissioner or any
other governmental agency which has an impact on insurance
regulation in the state through rule making and review and, if the
Insurance Advocate deems it to be in the public interest, appeal
the rule making or contested case decisions of the Insurance
Commissioner or other governmental agency which has an impact on
insurance regulation in the state;
(14) Represent the interests of the public relating to
insurance reform, coverage, and rates where action is necessary for
the protection of public rights.
(15) Institute judicial review of final or interlocutory
action of the insurance division if the review is deemed to be in
the public interest.
(16) Appear and participate as a party in the name of the
office of the Attorney General on insurance in the performance of
the duties of the office.
(b) The provisions of this section do not apply to any filing
made by an insurance company, or act or order performed or issued
by the Insurance Commissioner, or complaint filed by a policyholder
with the Insurance Commissioner prior to the date of enactment of
this statute. All proceedings and orders in connection with these
prior matters shall be governed by the law in effect at the time of
the filing, or performance or issuance of the act or order.
§5-3-9. Office of the Insurance Advocate; employees, expenses.
The Insurance Advocate shall be located within the Office of
the Attorney General. Administrative support services shall be
provided to the Insurance Advocate by the Office of the Attorney
General.
(a) The salary of the Insurance Advocate shall be fixed by the
Attorney General.
(b) The Insurance Commissioner shall make an annual assessment
against each insurance company for payment of all reasonable
expenditures incurred by the Attorney General in administering the
duties of the Insurance Advocate Unit. The assessments shall be in
an amount annually determined and certified by the Attorney General
to the Insurance Commissioner as sufficient reimbursement for the
expenditures of the Attorney General in administering the duties of
the Insurance Advocate and shall be proportionately assessed by the
Insurance Commissioner against each company.
An insurance company may meet its obligations under this
section by directly reimbursing the Attorney General and by
notifying the commissioner of the amount of the payment.
Assessments made pursuant to this section may be credited to
the normal operating costs of each company and shall be deposited
as general revenue.
Notwithstanding all existing statutory language to the
contrary, the role and position of Insurance Advocate is under the exclusive domain of the Office of the Attorney General.
NOTE: The purpose of this bill is to establish the position
of Insurance Advocate to be appointed by the Attorney General and
to be located in the office of the Attorney General. This bill
establishes the duties of the Insurance Advocate, provides for the
employment of staff by the office of the Attorney General. The
bill also sets forth the authority of the Insurance Advocate and it
provides for the duties of the Insurance Advocate.
§5-3-6, §5-3-7 and §5-3-8 are new; therefore, strike-throughs
and underscoring have been omitted.